A railroad section foreman, one of whose duties was to go over
and inspect the track and keep it in repair, assumed the risk of
being run down by a train while going to his work over a part of
the track that was in his charge, riding (by permission of a
superior) the railway velocipede which he used in track
inspections. P.
271 U. S.
219.
140 Va. 351 reversed.
Certiorari to a judgment of the Supreme Court of Appeals of
Virginia, which affirmed a recovery of damages in an action under
the Federal Employers' Liability Act.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit to recover damages for the death of the
plaintiff's husband, the intestate, from the railroad company upon
whose tracks the death occurred. The plaintiff (the respondent
here) obtained a verdict and
Page 271 U. S. 219
judgment in the trial Court, and, upon a writ of error, the
judgment was affirmed by the Supreme court of appeals of Virginia.
140 Va. 351. As the recovery was based upon the Employers'
Liability Act of April 22, 1908, c. 149, § 1, 35 Stat. 65, the
death having occurred in interstate commerce, a writ of certiorari
was granted by this Court to review certain questions of law that
arose in the case. 267 U.S. 590.
The deceased was an experienced section foreman upon the
defendant's road. One of his duties was to go over and examine the
track and to keep it in proper repair. When inspecting the track,
he used a three-wheeled velocipede that fitted the rails and was
propelled by the feet of the user. He had obtained from his
immediate superior, the Supervisor of Track, leave to use the
machine also in going to his work from his house, about a mile
distant, over a part of the track that was in his charge. His work
began at 7 in the morning, and at half past 6 on the day of his
death, he started as usual. Five minutes later, he was overtaken by
a train and killed. For reasons that the jury found insufficient to
excuse the omission, the engineer and fireman of the train were not
on the lookout, and the question raised is whether, as toward the
deceased, the defendant owed a duty to keep a lookout, or whether,
on the other hand, the deceased took the risk.
If the accident had happened an hour later when the deceased was
inspecting the track, we think that there is no doubt that he would
be held to have assumed the risk, and to have understood, as he
instructed his men, that he must rely upon his own watchfulness and
keep out of the way. The railroad company was entitled to expect
that self-protection from its employees.
Aerkfetz v.
Humphreys, 145 U. S. 418;
Boldt v. Pennsylvania R. Co., 245 U.
S. 441,
245 U. S.
445-446;
Connelley v. Pennsylvania R. Co., 201
F. 54;
Davis v. Philadelphia & R. Ry. Co.,
Page 271 U. S. 220
276 F. 187;
Pennsylvania R. Co. v. Wachter, 60 Md. 395;
4 Elliott on Railroads, 3d ed., § 1862. The duty of the railroad
company toward this class of employees was not affected by that
which it might owe to others.
The permission to use the velocipede in going to his work did
not make the defendant's obligation to the deceased greater than it
would have been after he got there. We assume that it was as
effective to make the use of the car lawful as would have been a
stockholder's vote spread upon the records of the company. But the
implications are not necessarily the same. It was a trifling
incident of daily life by which a subordinate officer of the
company allowed one lower in grade to enlarge his customary use of
the machine by an hour for his own convenience, although even then,
in the opinion of the Court of Appeals of Virginia, already engaged
in his duties. It seems to us to have been no more than an
extension of his ordinary rights and his usual risks.
Judgment reversed.